Judge Michael P. Linfield, Case Number: 22STCV01480, Date: 2023-07-12 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV01480, Date: 2023-07-12 Tentative Ruling

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Case Number: 22STCV01480 Hearing Date: July 12, 2023 Dept: 34

Moving Party: Plaintiff Virgil Haines

Resp. Party: Defendant General Motors LLC

Plaintiff’s Motion is GRANTED in part.

Attorneys’ fees, costs, and expenses are awarded for Plaintiff and against Defendant in the total amount of $50,566.58. This consists of a premultiplier lodestar of $43,835.40, a multiplier or 1.075, and costs of $3,443.52.

BACKGROUND:

On January 13, 2022, Plaintiff Virgil Haines filed his Complaint against Defendant General Motors LLC on causes of action arising from issues with Plaintiff’s vehicle, which was manufactured by Defendant.

On February 22, 2022, Defendant General Motors LLC filed its Answer.

On April 27, 2023, Plaintiff filed his CM-200, Notice of Settlement of Entire Case.

On June 14, 2023, Plaintiff filed his Motion for Attorneys’ Fees, Costs and Expenses.

On June 28, 2023, Defendant filed its Opposition. Defendant concurrently filed Declaration of Xylon Quezada.

On July 5, 2023, Plaintiff filed his Reply.

ANALYSIS:

I. Legal Standard

“Any buyer of consumer goods who is damaged by a failure to comply with any obligation under this chapter or under an implied or express warranty or service contract may bring an action for the recovery of damages and other legal and equitable relief.” (Civ. Code, § 1794, subd. (a).)

“If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).)

II. Discussion

A. The Parties’ Arguments

Plaintiff moves the Court to award $61,890.02 in attorneys’ fees, costs, and expenses. (Motion, p. 12:2–3; Reply, p. 10:7–9.) This would consist of a lodestar of $48,706.00, a 1.20 multiplier enhancement of $9,741.20, and costs and expenses of $3,442.82.

Plaintiff argues: (1) that Plaintiff is entitled to recover reasonable attorneys’ fees, costs, and expenses; (2) that the fees award must be based on actual time expended in the litigation; (3) that Plaintiff’s Counsel’s actual time billed was reasonably incurred; (4) that Plaintiff’s Counsel’s billing rates are reasonable; (5) that Plaintiff is entitled to recover the attorneys’ fees and costs associated with the Motion; and (6) that Plaintiff is entitled to recover a lodestar multiplier. (Motion, pp. 5:2–4, 6:22–23, 8:3, 9:10–11, 10:17–18, 11:4.)

Defendant opposes the Motion, arguing: (1) that the Court should only award fees actually and reasonably incurred; (2) that the fees should be reduced because they were unreasonable, excessive, and are padded; (3) that no multiplier should be awarded here; and (4) that more than half of the costs are not compensable. (Opposition, pp. 3:11–12, 4:7–8, 7:20, 10:10.)

Plaintiff reiterates his arguments in his Reply.

B. The Prevailing Party and the Method for Calculating Recovery

Plaintiff is the prevailing party in this litigation and is entitled to his reasonable attorneys’ fees, costs, and expenses. (Civ. Code, ¶ 1794, subd. (d).)

The Parties do not dispute that the appropriate approach for calculating recovery of attorneys’ fees is the lodestar adjustment method, which involves multiplying the number of hours reasonably expended by the reasonably hourly rate. (Warren v. Kia Motors Am. (2018) 30 Cal.App.5th 24, 36; accord Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 509–12.) The Court uses the lodestar adjustment method here.

C. Reasonableness of the Fees, Costs, and Expenses

1. Reasonableness of the Attorneys’ Fees

a. Legal Standard

“Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. The prevailing party and fee applicant bears the burden of showing that the fees incurred were reasonably necessary to the conduct of the litigation, and were reasonable in amount. It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [cleaned up].)

b. The Hourly Rates

Plaintiff’s Counsel declares: (1) that he charges $525.00 per hour; and (2) that Counsel Bohloul charged $355.00 per hour through 2022 and $395.00 per hour since the start of 2023. (Motion, Decl. Mizrahi, ¶¶ 22–23.)

Based upon the information submitted in the Declaration of Guy Mizrahi and the Court’s assessment of the prevailing rate for attorneys of comparable skill and experience in the relevant community, the Court finds that the hourly rates requested are reasonable.

c. The Number of Hours

Plaintiff’s Counsel claims that they actually engaged in 104.4 hours of work on this matter. (Motion, Exh. A, p. 9.)

Defendant argues that the number of hours should be reduced by 35.5 hours to account for unnecessary, excessive, duplicative, and unsupported entries. (Opposition, p. 4:16–18.)

The Court agrees that 104.4 hours in this litigation is excessive and that certain items claimed in the invoice appear to be unnecessary and duplicative. Only two, routine discovery motions were ruled on in this matter. Both motions were filed by Plaintiff. On Oct. 22, 2022, Plaintiff’s TWO discovery motions were heard; one was granted, one was denied. On Feb. 15, 2023, Plaintiff’s motion discovery motion was granted in part. There were no unique or notable issues raised by either party during the course of this relatively-routine standard Lemon Law case.

The Court finds that the time expended is not reasonable under the circumstances. (Mikhaeilpoor, supra, 48 Cal.App.5th at p. 247.) The Court takes this into account and award attorneys’ fees in a lesser amount.

“When a ‘voluminous fee application’ is made, the court may, as it did here, ‘make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.’ These percentage cuts to large fee requests are, however, ‘subject to heightened scrutiny and the use of percentages, in any case, neither discharges the district court from its responsibility to set forth a ‘concise but clear’ explanation of its reasons for choosing a given percentage reduction nor from its duty to independently review the applicant's fee request.’” (Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 102, quoting Gates v. Deukmejian (9th Cir. 1992) 987 F.2d 1392, 1399.)

Based on the relevant factors, the Court finds that a reduction of 10% in the number of hours claimed is reasonable here. This brings the attorneys’ fees lodestar to $43,835.40, which the Court determines to be the reasonable lodestar to be awarded in favor of Plaintiff and against Defendant.

2. Reasonableness of the Costs and Expenses

Plaintiff’s Counsel declares that they incurred $3,443.52 in costs and expenses during this litigation, which consists of:

(1) $1,369.37 in filing fees;

(2) $1,834.45 in deposition costs;

(3) $215.70 in service costs; and

(4) $24.00 in other costs.

(Motion, Exh. B.) (The Court notes that the Memorandum of Costs incorrectly lists the total amount of costs as $3,442.82.)

Defendant argues that the depositions and jury fees are not actually or reasonable incurred. (Opposition, p. 10:11–20.)

The Court disagrees with Defendant’s argument. The Court has not been presented with any evidence that these costs were not reasonably incurred. The Court finds that all of the costs and expenses were reasonably incurred.

The Court awards the costs and expenses in their entirety.

D. Multiplier to Lodestar

1. Legal Standard

“The amount of attorney fees awarded pursuant to the lodestar adjustment method may be increased or decreased. Such an adjustment is commonly referred to as a fee enhancement or multiplier. The trial court is neither foreclosed from, nor required to, award a multiplier. The Supreme Court has set forth a number of factors the trial court may consider in adjusting the lodestar figure. These include: (1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; and (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award.” (Mikhaeilpoor, supra, 48 Cal.App.5th at pp. 247–28 [cleaned up].)

2. Discussion

This case was not particularly novel or otherwise requiring special expertise. Further, virtually all lemon law cases are ultimately settled or otherwise won by the plaintiff, meaning there is no real risk that Plaintiff’s Counsel would not be paid in this case. To the extent expertise in lemon law litigation was required, Plaintiff’s Counsel’s fee rates incorporated such expertise into the standard lodestar request. Finally, Plaintiff’s law firm either exclusively or mainly handles lemon law cases. (See, e.g., https://journeylawgroup.com.) Therefore, their taking this contingency fee case did not preclude the firm from taking other work.

Nonetheless, the Court finds that Plaintiff’s Counsel is entitled to a multiplier for the delay in payment that occurred.

“The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138; accord Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1217–18 and Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1252.)

In contrast to Defense Counsel, who presumably gets paid monthly, Plaintiff’s Counsel have not been paid for 18 months of work from the filing of the Complaint to the hearing on this Motion.

Lemon law cases are based on statutes designed to protect the California consumer. If a plaintiff’s attorney is paid no more than the lodestar, “competent counsel will be reluctant to accept fee award cases.” (Ketchum, supra, 24 Cal.4th at p. 1133, quotation and internal quotation marks omitted.)

This Court is also aware that it “should not be ‘unduly parsimonious in the calculation of such fees.’” (Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 849, quoting Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 839.)

Plaintiff’s Counsel litigated this case from January 2022 to July 2023 without the payment that they are now being awarded. The Court takes into consideration: (1) this delay; and (2) the fact that the Song-Beverly Consumer Warranty Act was designed by the Legislature to protect the consumer.

The normal interest rate in California is 10%, which is the equivalent of a 1.10 multiplier. Because not all of an attorney’s work occurs at the beginning of any given year, the Court assumes that the work was performed more-or-less evenly throughout the course of any given year. This means a 1.05 multiplier per year is appropriate to compensate Plaintiffs’ Counsel for the time-value of the money that they would have been paid monthly had the case not been contingent.

As this case involved a year and a half of work since filing, the Court multiplies the lodestar of $43,835.40 by 1.075. This increases the lodestar to a total of $47,123.06.

III. Conclusion

Plaintiff’s Motion is GRANTED in part.